Bombay High Court
Atma Employees Welfare ... vs Union Of India And Others on 24 August, 2016
Bench: S.S. Shinde
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5060 OF 2015
ATMA Employee's Welfare Association
(Maharashtra State), Aurangabad,
Having its registered office at
N-9, K-36/2, Jalgaon Road,
Pawan Nagar, HUDCO,
Aurangabad - 431 003.
Through : its Secretary,
Pradeep s/o Balasaheb Pathak,
Age-47 years, Occu. Service as
Block Technology Manager,
R/o N-9, K-36/2, Jalgaon Road,
Pawan Nagar, HUDCO,
Aurangabad - 431 003 ..PETITIONER
VERSUS
1. The Union of India,
Through the Secretary,
Department of Agriculture
& Co-operation,
Ministry of Agriculture,
Government of India,
New Delhi
2. The Secretary,
Agriculture, Animal Husbandry,
Dairy Development and Fisheries
Department, Hutatma Rajuguru Chowk,
Madam Kama Road, Mantralaya,
Mumbai-32.
3. The Commissioner for Agriculture,
Office of Commissionrate,
Maharashtra State,
Pune
4. The Director,
A.T.M.A. (Agriculture Technology
Management Agency)
Commissioner of Agriculture,
Maharashtra State,
Pune-5 ..RESPONDENTS
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----
Mr. S.D. Joshi, Advocate for the Petitioner
Mrs.M.A. Deshpande, Additional Govt. Pleader, for
respondent/State
Mr. B.B. Kulkarni, Advocate for respondent nos.1 and 4
----
CORAM : S.S. SHINDE AND
SANGITRAO S. PATIL, JJ.
JUDGMENT RESERVED ON : 11th AUGUST, 2016
JUDGMENT PRONOUNCED ON : 24th AUGUST, 2016
JUDGMENT (PER : SANGITRAO S. PATIL, J.):
Rule. Rule made returnable forthwith. With the
consent of the learned counsel for the parties, the
petition is heard finally.
2. The petitioner is an association of the
Employees of Agricultural Technology Management Agency
popularly known as "ATMA" and hereinafter referred to as
ATMA only. The learned counsel for the petitioner
relying on the contents of the petition as well as
rejoinders dated 30th January, 2016 and 15th April, 2016
submits that respondent no.1-Union of India sponsored a
scheme called "ATMA" to support the State Extension
Agricultural Programmes in the year 2010. The said
programmes were to operate at District and Block Levels
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for implementation of the said scheme. Various posts
were created such as Block Technology Manager (for
short, "BTM"), Subject Matter Specialist (for short,
"SMS") which subsequently renamed as Assistant
Technology Manager (for short, "ATM") and Computer
Programmer (for short, "CP"). The Apex Body namely ATMA
Governing Board was established for supervising the
overall policy directions. Accordingly, one post of BTM
and two posts of ATMs were to be filled up at the Block
Level on contract basis. The post of Computer Programmer
(CP) was to be filled up on contract basis at District
Level.
3. The expenditure of implementing the scheme was
to be incurred by respondent no.1-Union of India and
respondent no.2-State Government in the ratio of 90:10,
respectively.
4. The posts referred to above were to be filled
up by respondent no.3. Accordingly, respondent no.3
published an advertisement for the above referred posts
calling for the applications from the eligible
candidates on or before 30th September, 2010. The members
of the petitioner were holding the requisite
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qualifications. Therefore, they applied for the above
referred posts as per their respective qualifications.
They were subjected to interview by the Office of
respondent no.3. Considering their educational
qualifications as well as performance in the interview,
they were selected for the said posts and appointed on
contract basis for a period of 11 months by issuing an
appointment order dated 10th November, 2010.
5.
The candidates appointed as BTM were offered
consolidated pay of Rs.15,000/- and Rs.5,000/- per month
towards mobility charges. The candidates appointed for
the posts of SMS (now called as ATM) were offered
consolidated pay of Rs.5,000/- and Rs.3500/- per month
towards mobility charges. Accordingly, the members of
the petitioner discharged their duties as BTM, ATM and
CP respectively.
6. The members of the petitioner holding the posts
of BTM and ATM were deputed for training to be conducted
by ATMA with the aid of Agricultural Department for a
period of 3 to 5 days. The members of the petitioner
also were directed to complete Post Graduation Diploma
in Agricultural Extension Management for which, ATMA
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incurred the expenditure of Rs.15,000/- for each of the
members of the petitioner. Most of the members of the
petitioner have completed the said Post Graduation
Diploma.
7. After completion of the period of 11 months
from the initial appointments of the members of the
petitioner, they were given a technical break for some
days and again issued appointment orders on contract
basis for a further period of 11 months. The services of
members of the petitioner came to be continued after
technical breaks on completion of 11 months from their
respective dates of appointments. The last appointment
orders were issued in the month of May-2014 and June-
2014 in respect of few members of the petitioner.
8. The members of the petitioner performed their
duties satisfactorily to achieve the objectives of the
scheme. The term of some of the members of the
petitioner was going to end on 30th April, 2015, while
the term of some of the members on 4th and 5th May, 2015.
In the meanwhile, respondent no.2 issued the impugned
communication on 9th April, 2015, whereby it was
indicated that instead of appointing the members of the
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petitioner on contract basis for a further period, the
posts held by them should be filled up on contract basis
only, but through outsourcing. Therefore, the members of
the petitioner apprehended that their services would be
discontinued without any reasonable ground. Hence, they
filed the present Writ Petition challenging the
communication dated 9th April, 2015 and seeking
continuation of their services until continuation of the
scheme sponsored by the Central Government or until
attaining the age of superannuation, whichever is
earlier.
9. The learned counsel for the petitioner submits
that the members of the petitioner are not claiming
regularisation in the services. The said members have
been subjected to proper selection process and after
considering their educational qualifications and
satisfactory performance in the interview, they have
been appointed to the respective posts. They were
continued from time to time till the year 2014, after
giving them technical breaks on completion of their
respective period of 11 months from the respective dates
of appointments. He submits that the scheme sponsored by
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respondent no.1 - Union of India is still in existence.
The workload of the said scheme has been increased.
Therefore, in the place of two ATMs, three ATMs have
been sought to be appointed. He further submits that the
members of the petitioner are experienced hands. Some of
them have completed the age of 45 years. However, by
introducing the new scheme, the respondents have tried
to throw the members of the petitioner on streets by
taking the decision to fill up the posts of BTM, ATM and
CP on contract basis through outsourcing, from the
candidates, who are below the age of 45 years. He
submits by this strange decision, the members of the
petitioner are being subjected to great harassment and
inconvenience. He, therefore, submits that the impugned
communication dated 9th April, 2015, may be quashed and
set aside and the respondents may be directed to
continue the services of the members of the petitioner
till the scheme sponsored by respondent no.1 remains
in force or till the members of the petitioner attain
their respective ages of superannuation, whichever
occurs earlier.
10. The learned Additional Government Pleader filed
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reply dated 29th June, 2015 and additional reply dated
11th February, 2016, he opposed the Writ Petition. The
some and substance of the contentions raised by
respondent nos.2 to 4 is that the ATMA Scheme of 2010,
has been replaced by ATMA Scheme of 2014. As per the
guideline No.2.9 on page No.29 of ATMA Scheme of 2014,
the mode of recruitment and remuneration has been
changed. Accordingly, the above referred posts are
required to be filled up on contract basis not by the
respondents, but through outsourcing. Remuneration for
the above referred posts also has been increased. The
learned A.G.P. submits that the earlier ratio of sharing
expenditure by the Union of India and State Government
for implementation of the scheme has been changed from
90:10 to 60:40 respectively. The budgetary provision and
policy decision for incurring expenditure has not yet
been made. Therefore, the Minister for Agriculture,
directed that unless and until policy decision is taken
by the State Government and budgetary provision is
sanctioned, the orders for appointment on contract basis
in favour of the members of the petitioner should not be
issued. The learned A.G.P. submits that the members of
the petitioner had been appointed on contract basis for
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a limited period of 11 months. Their services were
continued after technical breaks from time to time.
However, the extension of their services would not vest
them with any right to claim continuity in service until
termination of the scheme or attaining the age of
superannuation, whichever is earlier. The learned A.G.P.
further submits that as per the revised guidelines, the
above referred posts would be required to be filled up
through Service Providers from the candidates who are
below the age of 45 years. Therefore, the persons who
attained the age of 45 years cannot claim appointments
to the said posts. The learned A.G.P. submits that as
per the guidelines of 2010, it was discretionary to fill
up the posts on contract basis by the State Government.
However, as per the guidelines of the year 2014, it has
been made obligatory on the part of the State Government
to fill up the said posts on contract basis through the
Service Providers. On these grounds, the learned A.G.P.
submits that the Writ Petition, may be dismissed.
11. Indisputably, the members of the petitioner
have been selected to the posts held by them after
publishing an advertisement and calling for applications
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from all the eligible candidates. They were subjected to
interview by the Selection Committee. As such, they were
selected to the posts held by them by following due
procedure. It is not the case of the respondents that
the members of the petitioner have been appointed
without following the due process of selection.
12. The scheme of ATMA is still in force. It is not
the case of the respondents that the workload of the
said scheme has been reduced and therefore, some of the
members of the petitioner would be required to be
removed from the services. On the contrary, as seen from
the comparative chart given by the learned A.G.P. at
internal Page No.6 of the reply dated 11th February,
2016, in the place of two ATMs, three ATMs have been
decided to be appointed at one Block Level. It is clear
that the workload of the scheme has been increased.
13. Admittedly, the members of the petitioner have
been given training by ATMA for 3 to 5 days by spending
of Rs.500/- per day for each of them. Moreover, most of
the members of the petitioner have completed their Post
Graduation Diploma in Agricultural Extension Management
at the cost of the respondents, which was Rs.15,000/-
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per member. The members of the petitioner have
experience of 5 to 6 years at their credit. They have
satisfactorily worked for implementation of the scheme.
If that be so, we do not find any rational or
justification for discontinuing the services of the
members of the petitioner and appointing fresh
candidates for doing the same work on contract basis,
but through Service Providers.
14.
The learned counsel for the petitioner cited
the judgment in the case of Md. Abdul Kadir and anr Vs.
Director General Of Police, (2009) SCC-611, wherein the
Government of India formulated the Prevention of
Infiltration of Foreigners Scheme ("PIF Scheme" for
short) for Assam, for strengthening the Assam Government
machinery for detention and deportation of foreigners in
the year 1960. The scheme had been extended from time to
time and was in force even when the above cited
judgment was delivered. As per the said scheme, only
ex-servicemen were to be appointed to the additional
posts for contract period of one year. After the said
period of one year, they were being given
breaks and reappointed considering their performance.
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The artificial annual breaks and reappointments were
introduced by the State Agency entrusted with the
operation of the scheme by issuing circular dated 17th
March, 1995. Being aggrieved by process of termination
and reappointment introduced by the said circular and
consequences thereof, appellant nos.1 and 2 therein,
approached the Gauhati High Court. The learned Single
Judge of the Gauhati High Court allowed the writ
petition filed by them and held that the appellants
should be continued as long as the scheme was continued
by the Government of India. The said decision was set
aside by Division Bench of the Gauhati High Court. The
decision was challenged before the Hon'ble the Supreme
Court, which came to be allowed partly with the
following observations.
"This Court has always frowned upon artificial
breaks in service. When the ad hoc appointment
is under a scheme and is in accordance with the
selection process prescribed by the scheme,
there is no reason why those appointed under
the scheme should not be continued as long as
the scheme continues. Ad hoc appointments under
schemes are normally coterminus with the scheme
(subject of course to earlier termination
either on medical or disciplinary grounds, or
for unsatisfactory service or on attainment of
normal age of retirement). Irrespective of the
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length of their ad hoc service or the scheme,
they will not be entitled to regularization nor
to the security of tenure and service benefits
available to the regular employees. In this
background, particularly in view of the
continuing Scheme, the ex-serviceman employed
after undergoing selection process, need not be
subjected to the agony, anxiety, humiliation
and vicissitudes of annual termination re-
engagement, merely because their appointment is
termed as ad hoc appointments. We are therefore
of the view that the learned Single Judge was
justified in observing that the process of
termination and re-appointment every year
should be avoided and the appellants should be
continued as long as the Scheme continues,
but purely on ad hoc and temporary basis,
coterminus with the scheme. The circular dated
17.3.1995 directing artificial breaks by annual
terminations followed by fresh appointment,
being contrary to the PIF Additional Scheme and
contrary to the principles of service
jurisprudence, is liable to be quashed."
15. The learned counsel for the petitioner placed
reliance on common judgment in the case of of Ajay s/o
Ashokrao Ghatole and others Vs. The State of Maharashtra
and others (Writ Petition No.9539 of 2012 and the
companion writ petitions), delivered by this Court on
12th March, 2014, wherein, the petitioners claimed to be
appointed as Data Entry Operators on contract basis
challenged the communication dated 9th November, 2012,
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issued by the Director of Education (Primary), directing
of the Education Officer (Primary), Zilla Parishads in
the State of Maharashtra to start the process of
recruitment of Data Entry Operators on contract basis
afresh. The said writ petition came to be allowed with
the following observations.
"In the present case, the petitioners have
undergone the selection process undertaken by
the State Government as per its policy. There
is no objection to the recruitment process
that has been undergone by the present
petitioners. The petitioners are not claiming
permanent status based upon their temporary
employment or absorption or regularisation.
What is claimed by the petitioners is that
they should be continued in employment till
the scheme in question is continued or till
there is a change in the requirement of the
qualification under the scheme by the Central
Government. The case of the petitioners is
squarely covered by the judgment of Apex Court
in the case of the Mohd. Abdul Kadir (cited
supra)."
16. The controversy involved in the present case is
rather similar to that of the case of Ajay s/o Ashokrao
Ghatole and others Vs. The State of Maharashtra and
others, (supra). In view of the above cited judgments,
we are of the considered opinion that the cosmetic
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change in the Guidelines of 2010 and 2014 pertaining to
recruitment of the staff of the scheme just by
substituting the word "should" for the word "may" cannot
be attached with any importance. There is no rational or
justification in discontinuing the services of the
members of the petitioners, who are trained and
experienced hands, and allowing the respondents to fill
up the said posts on contract basis only from the fresh
candidates through service providers. As stated by the
petitioner itself, its members are not claiming
regularisation of their services or seeking the benefits
of permanency. The members of the petitioner certainly
are entitled to expect reasonably continuation of their
services until termination of the above referred scheme
or until attaining the age of superannuation, whichever
occurs earlier. In view of the judgment in case of
Md. Abdul Kadir and anr Vs. Director General Of Police,
(supra), the members of the petitioner would not be
entitled for regularisation of their services and their
services would be coterminus with the above-mentioned
scheme. In the result, we allow the writ petition with
the following order.
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O R D E R
(i) The impugned communication dated 9th April,
2015, to the extent of Clause-2 issued by
respondent no.2 directing appointment on
contract basis through outsourcing, is hereby
quashed and set aside.
(ii) The respondents shall continue the services of
the members of the petitioner until
continuation of the scheme sponsored by
Respondent no.1-Union of India or until they
attain the age of superannuation, whichever
occurs earlier, subject of course to earlier
termination either on medical or disciplinary
grounds or for unsatisfactory performance.
(iii) Rule is made absolute in the above terms.
(iv) The Writ Petition is accordingly disposed of.
(v) The parties shall bear their own costs.
Sd/- Sd/-
[SANGITRAO S. PATIL] [S.S. SHINDE]
JUDGE JUDGE
mandawgad_sa/wp5060-2015
